In previous work, Steven Hetcher and I have identified problems with the fixation requirement as it applies to modern creative expression and have argued for changes that would amend the fixation requirement to better function in the modern era. This Essay furthers that argument. As part of the Kernochan Center Symposium, “Copyright Outside the Box,” I argued that the transitory duration exclusion for copyrightability should be stricken from the definition of fixation to better enable it to reflect the parameters of modern creative expression. Agnieszka Kurant’s art serves as an example of this need for change. Removing the exclusion for transitory works, while maintaining the stability requirement, would retain the essence of the definition of fixation under the Copyright Act but enable application to modern forms of creative expression, including both contemporary art and digital works.
